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HIGH COURT OF CHHATTISGARH, BILASPUR
GOUTAM BHADURI, J.
Nand Kumar Sahu – Petitioner
Vs.
Satyanarayan Sharma - Respondent
E.P. No. 13 of 2014
Decided on : 12-5-2015
Civil Procedure Code - Rule 11 - Order 7 - Challenged The Tenability - Equated To As Evidence - Written statements though have been filed prior to that an application under Order 7 Rule 11 of C.P.C. was preferred to challenge maintainability of petition. Subsequent there to by an order Court had directed for hearing of the application under Order 7 Rule 11 of C.P.C. pursuant there to it has come up for hearing to adjudicate on maintainability of petition as to whether cause of action arises for all the grounds pleaded in election petition - Application under Order 7 Rule 11 of C.P.C. is preferred by the respondent returned candidate. Perusal of the election petition would show that initially 16 parties were added as a respondents, but subsequently, all the names have been deleted except respondent - Though respondents numbering were deleted, the averments and the pleadings with respect to the said parties, still exits – Held, reading of entire pleading, the proof of commission of corrupt practice appears to be absent, so as to give an opportunity to the petitioner to prove such commission of corrupt practice. The election petition being a different nature, the pleading can not be made vague as has been observed and followed by the Supreme Court repeatedly. The degree of pleading is different unlike the normal civil suit in the background of fact that the election petitioner has contested a election who will represent the mass of people. In the instant case, the parties on whom the allegations are leveled except respondent No.1, the other parties who were initially made as many as 16 in number, the other 15 have been deleted, but petition contains the allegation against the Returning Officer and others. The purpose of Section 81 Act of 1951 is to put the returned candidate on notice of various allegations made against him in order to enable him to defend himself effectively in the election petition. The allegation of corrupt practice have been made against the returning officer, who stands deleted, which has further added disqualification about the addition of parties - As has been laid down by their Lordship in case of C.P. John (supra) that when a election petition is taken up for consideration, the Court which deals with such election petition should be in a position to know the exactitude as to what is the corrupt practice alleged without giving any room for doubt as to the nature of such allegation, the parties involved, the date, time and the place, etc. so that the party against whom such allegation is made is in a position to explain. The election petitioner can not simply raise any allegation for corrupt practice and get away with it. Since the successful candidates in an election has got the support of the majority of the voters who cast their votes in his success gained by a candidate in a public election cannot be allowed to be called in question by any unsuccessful candidate by making frivolous or baseless allegations and thereby unnecessarily drag the successful candidate to the court proceedings
1. The order shall govern the disposal of I.A.No.3, which is an application under Order 7 Rule 11 of C.P.C., wherein the respondent has challenged the tenability of the election petition and raised the preliminary objection.
2. The written statements though have been filed on 25.06.2014 prior to that, an application under Order 7 Rule 11 of C.P.C. was preferred to challenge the maintainability of the petition. Subsequent there to by an order dated 25.04.2014, the Court had directed for hearing of the application under Order 7 Rule 11 of C.P.C., pursuant there to, it has come up for hearing to adjudicate on maintainability of the petition as to whether cause of action arises for all the grounds pleaded in election petition.
3. Application under Order 7 Rule 11 of C.P.C. is preferred by the respondent No.1, the returned candidate. Perusal of the election petition would show that initially 16 parties were added as a respondents, but subsequently, all the names have been deleted except respondent No.1. Though the respondents numbering upto 2 to 16 were deleted, the averments and the pleadings with respect to the said parties, still exits. This has led to complete contradiction and omissions of pleadings and submission led to complete confusion.
4. The challenge in the election petition is by the contesting candidate of Legislative Region No.48, Raipur Gramin Legislative Assembly, District Raipur, who contested the election under the Bhartiya Janta Party. The respondent No.1 is the returned candidate of the election held for the Region-48 of Raipur Gramin Legislative Assembly. The voting took place on 19.11.2013 and result was declared on 08.12.2013 and the respondent was declared as a elected member of legislative assembly. The respondent secured vote of 70,774 while the petitioner secured votes numbering into 68,931.
5. Dr. N.K. Shukla, Sr. Advocate with Mr. Aditya Tiwari, counsel appearing on behalf of the respondent would submit as under :-
(i) The ground for declaring the election to be void finds place in Section 100 of Representation of People Act, 1951 (herein after referred to as 'the Act of 1951'). It is stated that the provision of sub-section 1 (d) (iv) mandates that in order to declare a election void, the non-compliance is to be within the provisions of Constitution or "of this Act" or in Rules or Act made under "this Act". Therefore, would submit that in order to get a relief as has been pleaded and as alleged by the petitioner that the names of voter were inserted after the date of nomination, such ground would not be available as the word "this Act" necessarily refers to Act of 1951.
(ii) He further made a reference to the Representation of People Act, 1950 (hereinafter referred to as "the Act of 1950") and stated that one of the preamble of the Act is for preparation of electoral rolls manner of filing seats in council to be tiled by the representatives and would submit that the preparation of electoral rolls is covered under Part-III of the Act of 1950.
(iii) He further referred to Section 21 of the Act of 1950 which is for preparation and revision of electoral rolls. Section 22 is for correction of entries in electoral rolls. Section 23 is for inclusion of names in electoral rolls and Section 24 is for appeals. Therefore, submits that the entire procedure for inclusion and excluser of name are covered by the Act of 1950, which is a Code in itself, so the election petition would not lie on the ground of erroneous electoral list and such remedy is not available to the petitioner.
(iv) He further referred to Section 30 of the Act of 1950 and would submit that the jurisdiction of Civil Court is barred under the Act of 1950 about preparation of electoral roll, and therefore, the finality has been given to such preparation of electoral rolls, which can not be a subject matter of election petition.
(v) The learned counsel read out the averments of the election petition and would submit that the allegations about the del
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